WASHINGTON—Yesterday, the Immigration Reform Law Institute (IRLI) filed a brief in the Supreme Court arguing that, where officials revoked a woman’s marriage-based visa petition for her alien husband because he had entered into a previous, sham marriage for the purpose of evading the immigration laws, their decision was an exercise of discretion that Congress made unreviewable by courts.
Congress has directed that visa petitions based on an alien’s marriage with a U.S. citizen, national, or lawful permanent resident generally should be granted, unless that marriage is a sham, in which case they should be denied. These decisions on whether to grant or deny visa petitions, because they are applications of statutory standards and not discretionary, are reviewable by courts.
The law provides, however, that exercises of agency discretion, such as whether to revoke a previously-granted visa petition, are not reviewable by courts. The governing statute does not provide standards for revoking visa petitions, as opposed to granting or denying those based on marriage, but merely provides that officials “may,” for what they deem “good and sufficient cause,” revoke a petition “at any time.” This language makes these decisions discretionary.
“When Congress limits the courts’ jurisdiction, as it has here, the courts must respect that,” said Dale L. Wilcox, executive director and general counsel of IRLI. “Given the enormous number of those seeking visas to enter the United States, broad discretion must be, and is, given to executive officials that courts can’t review, or the system would become hopelessly clogged. We hope the Court applies the law here straightforwardly, and sees that it lacks jurisdiction.”
The case is Bouarfa v. Mayorkas, No. 23-583 (Supreme Court).
